93 Decision Citation: BVA 93-08581
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-36 948 ) DATE
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THE ISSUE
Entitlement to waiver of recovery of an overpayment of improved
pension benefits in the amount of $1,189.
(The issue of Entitlement to service connection for defective
hearing will be the subject of a separate decision of
March 4,1993.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Jeffrey A. Pisaro, Associate Counsel
INTRODUCTION
The veteran had active service from March 1944 to May 1946. This
matter came before the Board on appeal from an October 1990
decision of the Buffalo, New York, Regional Office's Committee on
Waivers (hereinafter RO), which denied waiver of recovery of
overpayment on the basis that the veteran was at fault in the
creation of the indebtedness. The notice of disagreement was
received in June 1991, the statement of the case was issued in
February 1992, and the substantive appeal was received in April
1992. The veteran appeared and testified at a June 1992 personal
hearing conducted at the RO. Following the issuance of a
supplemental statement of the case in July 1992, the case was
received at the Board in October 1992 and docketed in March 1993.
Written argument on appeal was submitted in October 1992 by the
American Legion, which has represented the veteran throughout his
appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that waiver of recovery of the overpayment
at issue is warranted. He asserts that he was not at fault in
the creation of the overpayment as he was assisted in filling out
the application form by a service representative. The veteran
indicated that he has difficulty reading resulting from a
degenerative eye disability. It is further contended that
recovery of the indebtedness would create a severe financial
hardship on the veteran.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West
1991), following review and consideration of all evidence and
material of record in the veteran's claims file, and for the
reasons and bases hereinafter set forth, it is the decision of
the Board that the preponderance of the evidence is against the
claim for waiver of recovery of the overpayment of improved
pension benefits in the amount of $1,189.
FINDINGS OF FACT
1. All evidence necessary for the disposition of the appellant's
claim has been obtained by the RO.
2. The appellant was at fault in the creation of the debt, and
the current evidence does not show that the collection of the
indebtedness would subject the appellant to an undue financial
hardship.
CONCLUSION OF LAW
Recovery of the overpayment of improved pension benefits in the
amount of $1,189 would not be against the principles of equity
and good conscience. 38 U.S.C.A. §§ 5107, 5302 (West 1991);
38 C.F.R. §§ 1.963, 1.965 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant's claim is well grounded within the meaning of
38 U.S.C.A. § 5107(a). That is, we find that he has presented a
claim which is plausible. We are also satisfied that all
relevant facts have been properly developed and that no further
assistance is required to comply with the duty to assist under
38 U.S.C.A. § 5107(a).
The veteran filed an application for improved pension benefits in
August 1988. He reported Social Security and what was later
determined to be rental income. By award letter in May 1989,
improved pension benefits were granted, effective from
September 1, 1988. Enclosed with the award letter was VA Form
21-8768 which indicated that the rate of pension paid to a
veteran depended on the amount of family income, that the VA
should be notified immediately if there were any change in income
or net worth for the veteran or his dependents for whom he had
been awarded benefits, and that the failure to promptly notify
the VA of any change in income could result in an overpayment
which would be subject to recovery.
In October 1989, the veteran submitted an eligibility
verification report which indicated the receipt of $143 per month
in private pension benefits since 1976. Based on this
information, by amended award letter in November 1989, the
veteran was informed that his improved pension benefits had been
retroactively terminated from September 1, 1988, through November
1989 which resulted in an overpayment in the amount of $1,189.
The veteran filed a request for waiver of overpayment in January
1990.
At the June 1992 personal hearing, the veteran testified that he
was not at fault in the creation of the overpayment as his
pension application form was filled out by a service
representative. Essentially, he indicated that the form was read
to him and he answered appropriately.
Under applicable criteria, recovery of an overpayment of improved
pension benefits may be waived if recovery of the indebtedness
from the payee who received the benefit would be against equity
and good conscience. 38 U.S.C.A. § 5302; 38 C.F.R. § 1.963(a).
The equity and good conscience standard means arriving at a fair
decision between the obligor and the Government. In making this
decision, consideration is given to the fault of the debtor;
balancing of fault of the debtor against any fault of the VA;
whether collection would deprive the debtor of basic necessities;
whether recovery would nullify the objective for which benefits
were intended; whether failure to make restitution would result
in unfair gain to the debtor; and whether reliance on the
benefits would result in relinquishment of a valuable right or
incurrence of a legal obligation. 38 C.F.R. § 1.965(a). After
considering these factors, we conclude that waiver of the
overpayment at issue is not warranted.
The sole issue before the Board is whether the collection of the
overpayment at issue would be against the principles of equity
and good conscience. As stated above, this involves a number of
considerations, one of which is the appellant's relative fault in
the creation of the debt. It is the
veteran's contention that he did not intentionally furnish
inaccurate information to the VA; however, the record
demonstrates that he failed to report private pension income in
1988 despite the fact that he had received written information
indicating that income from all sources was to be reported. We
note the veteran's contention that he relied on a service
representative due to his poor eyesight. Although this somewhat
mitigates the veteran's degree of fault, it does not exculpate
him from the basic responsibility of complete and accurate
reporting of family income. Thus, the veteran's omission
concerning income reporting requirements constitutes fault on his
part; however, fault alone is generally not sufficient to deny
waiver.
We must also consider the veteran's ability to make restitution
without seriously impairing his ability to provide his family
with life's basic necessities. The veteran submitted a financial
status report in September 1990, which indicated $936 in net
monthly income, and $846 in net monthly expenses. The latter
figure included zero dollars for rental or mortgage payment, $200
for food, $130 for utilities and heat, $40 for telephone,
$127 for insurance, zero dollars for clothing, $103 for medical
expenses, $76 for recreation, $77 for taxes and water expenses,
$80 for automobile expenses and $13 for the newspaper. Also
indicated was $312 in monthly installment debts; however, in
Section VI (Installment Contracts and Other Debts) the veteran
indicated zero dollars in monthly payments to creditors. Assets
included $9,300 in cash, and real estate assessed at $27,000. As
the veteran totaled his monthly expenses as being $936, it is
clear that the $312 figures does not represent a monthly
obligation. It is equally clear that the $936 figure was a
miscalculation and that the veteran's monthly expenses totaled
$846. Thus, we find that the veteran's net income over expenses
of approximately $90 is sufficient to repay the indebtedness.
This is especially so in view of the fact that the veteran has
sufficient cash assets to repay the debt and does not need to
utilize his assets to meet his monthly expenses. Furthermore,
with more than $9,000 in the bank, the veteran is capable of
repaying the overpayment without nullifying the intent of the VA
pension program. In short, without encumbering his short- or
long-term financial assets, it does not appear that recovery of
the existing overpayment would deprive the veteran of his ability
to provide his family with the basic necessities of life.
Accordingly, we find that it would not be unconscionable or
unjust to require repayment of the indebtedness.
ORDER
Since recovery of the overpayment of improved pension benefits
would not be against equity and good conscience, the appeal is
denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
D. W. DATLOW, M. D. I. S. SHERMAN
C. W. SYMANSKI
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.